22 December 2006

The Best Defense is to be Offensive

"It's just good business." - too many people.

I find that this line is uttered by people doing morally or ethically reprehensible things that make good business sense. But, you know what, in your biography, your obituary, blogs, the court of public opinion -- people don't care about good business sense. They care about whether or not you did the right thing.

Don Dodge writes today about Microsoft's move to patent various RSS elements. He claims they are doing this to protect themselves from legal challenges regarding Microsoft's use of RSS.

He says:

Microsoft reportedly has filed two patents covering certain aspects of RSS, Really Simple Syndication. Dave Winer is outraged. Nick Bradbury sagely says "Not so fast". I don't have the inside scoop on this yet, but here is what I think is happening. Microsoft is protecting itself against patent trolls.

Relax. I believe Microsoft has no intention of enforcing this patent against anyone, and no intention of collecting royalties on it. Microsoft is not pretending that they invented RSS...just protecting itself against potential patent infringement lawsuits from "shell companies" and "patent trolls" who do nothing but sue big companies. Sad to say this is the current state of the patent system.

He lists some earlier examples of where Microsoft did not protect themselves and got burned. Fair enough.

He ends this by blaming lawyers:

Patents become poker chips in a high stakes game of legal lunacy. Don't you just love lawyers?

No, this is not lawyers ... it's "good business". It's good business for other people to sue Microsoft in the same way it's good business for Microsoft to seek patents on an open industry standard they did nothing to invent or perfect.

What could Microsoft do instead that would make them fans everywhere? Help deconstruct the system that rewards spurious, injurious and nefarious patents like this one from even being considered. Help create a repository of patterns and practices that are legally defendable as best and common practice.

Come out with a press release saying "We, Microsoft, are going after these patents because we keep being sued by unethical bastards who get patents specifically to sue us. We will never use these patents to sue someone else. These are merely a defensive maneuver on our part because people don't listen to Larry Lessig enough."

So, I'd say to Microsoft, I understand your need to protect yourself. I also understand that if you're not part of the solution, you are part of the problem.